Obama DOD Official Sees Stable Cleanups For Military Even With EPA Cuts

February 24, 2017

In an exclusive interview with Inside EPA last month, Rachel Jacobson, who recently left her post as the Obama administration's top Defense Department lawyer on environmental matters, says she sees DOD fulfilling its cleanup responsibilities even if EPA's budget for overseeing such cleanups were to be cut under the Trump administration, but notes that funding for DOD cleanups has nonetheless always been a challenge.

Her remarks are significant coming shortly before the Government Accountability Office (GAO) for the first time added federal environmental cleanups -- including those for which DOD is responsible -- to its list of programs that pose a "high risk" of fraud, waste or abuse.

According to GAO's Feb. 15 report, DOD is liable for $63 billion in cleanups.

Jacobson, who was DOD deputy general counsel for environment, energy and installations from August 2014 through November 2016, also expresses doubt that EPA under President Trump will soften its stance when in disputes with DOD over cleanup issues, noting agencies are careful not to cede their jurisdiction no matter the administration.

She also says she sees the military services' procurement of renewable energy as a key environmental achievement, signaling such procurement is likely to withstand any change in climate policy as DOD has long required the cost of such contracts to be on par with contracts that rely on conventional energy sources.

Here is a transcript of the question and answer exchange with Jacobson, edited for clarity:

Inside EPA: One area I was going to ask you about was emerging contaminants, which seems to be [an] area of potential liability for DOD, particularly in the area of those perfluoro chemicals, like PFOA. So I was wondering how DOD, at the time you were there, . . . [was] addressing it. Was there any fear that there would be some kind of precedent set, like I know there was pressure from at least one community for the Navy to pay for blood tests of PFCs? How was DOD viewing this particular emerging contaminant, but also in general, emerging contaminants?

Jacobson: Well, DOD has always been engaged very closely with the regulators on getting a better understanding of emerging contaminants, and then assessing whether and to what extent they exist on military bases or as a result of military operations. So in that respect, the PFOA/PFOS situation is really consistent with how DOD has been, and continues to address, emerging contaminants. The situation with PFOA/PFOS is that EPA changed the health advisory standard [from 400 parts per trillion (ppt) for PFOA and 200 ppt for PFOS to 70 ppt], which reduced considerably the recommended concentrations of PFOA/PFOS in drinking water. And because those particular substances are commonly used, especially in fire suppression chemicals, DOD took very seriously an assessment of where, if anywhere, there was any concentration of PFOA/PFOS in drinking water on or near a military installation in excess of the new health advisory standard. As you know, those are just recommendations; they're not promulgated regulations.

So to a certain extent, some of those sites will be addressed; and were anyway being addressed under normal CERCLA authorities. And, of course, DOD is also not in the business of conducting health assessments. It's not its area of expertise. So DOD has also been working in coordination with [the Agency for Toxic Substances & Disease Registry], which has the relevant expertise for health assessments.

Inside EPA: But is there, or was there, any worry that you'd always have this kind of moving target, like with EPA, ... they changed their health advisory, or they updated it? And now you have states, like New Jersey weighing a much lower one. . . . How was DOD handling that?

Jacobson: I think DOD is accustomed to moving targets in the regulatory world. It's a matter of trying to be nimble. Of course, DOD is a massive organization, with lots of military installations and . . . a need to prioritize where there's greatest risk. So it's a matter of always being responsive to changing regulatory standards. I think to that extent, it's not any more or less a moving target than EPA has taken with respect to groundwater cleanup. As you probably know, in recent years EPA has been taking a broader view of groundwater cleanup, in terms of trying to predict all possible future uses and modifying remedies accordingly.. . . So I guess the answer to the question is: I think it's expected that there's going to be moving regulatory targets. The science becomes clearer, and there are better understandings of the risks; I think that goes with the territory. I don't think DOD expects that these standards will be in any way static.

Now having said that, usually you want to make sure that there's pretty robust peer-reviewed science. And where it's an actual change in a regulatory standard, of course, it has to be properly promulgated. And then of course DOD wants to be a full participant in terms of commenting and assessing the financial impacts of those changes.

Inside EPA: We also wanted to know generally, what are the biggest achievements you saw while at DOD?

Jacobson: [Where] I would say there were noticeable achievements was in the renewable energy realm, and the very. . . ambitious and aggressive targets that each of the military departments made to procure renewable energy and lock in long-term contracts. It was pretty impressive to see how quickly, in particular Navy and Army, moved to put in place these 30-year power purchase agreements to guarantee a certain source, a reliable source of renewable energy for several of the military bases. So that really, I think, is demonstrable. And because DOD is such a large consumer of energy, it really does make a difference there. So I would say that in my short time there, that's where I saw real, measurable change.

I'd say another place where I was really impressed with how well DOD performed was on the conservation side, with the [Readiness and Environmental Protection Initiative (REPI)] program, and the Sentinel Landscapes program that grew out of REPI. The notion is that by partnering with other federal agencies, state agencies, NGOs and even private landowners, DOD could really plan very carefully to identify mitigation opportunities for natural resource management by preserving habitat off-base. And it really became an incredibly successful program, and it had been in existence for a while before I got there. But I also saw in those two years how much that program advanced, and how well-received it is by the various communities near military bases.

Inside EPA: On the first item, the procurement of renewable energy, you're referring to at installations; that's not vehicles?

Jacobson: For installations. Yeah, I'm not talking about in the field, although there's a lot of technology and research going on for bringing renewable energy into the field. But I'm talking about at U.S.-based installations.

Inside EPA: Yeah, Army had that [net-zero program].

Jacobson: In addition to Army hoping to achieve net-zero installations by reducing energy usage and consumption and conserving, there's also the guarantee of renewable energy sources at many military bases, that really was very impressive. The Army's net-zero program is impressive, and Army is good at looking at and measuring the performance of its net-zero buildings and net-zero bases on many levels, including energy efficiency and water usage. But on top of that, all the military branches are procuring renewable energy sources, in part by using private financing to build wind or solar facilities off-site that would then supply any number of bases. With Army, it's typically one base at a time, but Navy entered into a very impressive contract working in partnership with Department of Energy [and] the Western Area Power Authority to supply 25 years of solar energy to something like 15 bases in California. I might not have that number exactly right, but it's really an impressive contract.

Inside EPA: How secure do you think those kinds of programs . . . are, given DOD has in different administrations been seen as kind of a proving ground for that administration's preferred . . . energy, technologies? I mean, during the Bush administration, they wanted DOD to build coal-to-liquid facilities. Now, obviously, the examples you were giving you're talking about long-term procurement contracts [for renewable energy].

Jacobson: Are you asking whether you think they'll survive the [Trump] administration?

Inside EPA: I mean, I assume these specific contracts will survive because they're long-term contracts, but these kinds of . . . clean energy goals and so on, at DOD, more broadly than just these specific contracts?

Jacobson: Well, these are going to be policy questions, obviously. But DOD for a very long time has been looking at the need for energy independence, and ensuring reliable sources of energy for military installations. So they've been looking at those issues for a long time, whether you want to call it because of climate change or resilience. Either way, DOD also recognizes the need for planning in terms of energy usage and procurement. What is the . . . administration going to do with those policies? I don't know. Because there are a few climate-focused policies in place at DOD, in addition to the [Obama] White House initiatives, and DOD is of course part of federal government, so it is a player on some of those initiatives. You know, for example, the greenhouse gas executive order, and so forth.

But even separately, DOD has had its own analyses in place for a very long time on the effects of climate change, in terms of extreme weather and fire events and so on, both in terms of the threats to infrastructure and assets of DOD, but also where it can impair training, where there's prolonged heat or flooding, or so forth, it can impair training. Or to the extent that troops are diverted for humanitarian assistance. So there's a whole spectrum of planning associated with climate change, in terms of weather-related events and natural disasters.

Now, having said that though, on the renewable energy front, DOD's policy has always been, even throughout the Obama administration, that procurement of renewable energy had to meet a business case analysis. Procurement of a renewable source of energy cannot be more expensive than procurement of that same amount of energy from conventional sources. So in each of these instances where DOD pursued a long-term renewable energy procurement contract, there was a substantial business case made to show . . . what the savings would be over that period of time of the contract. So, on the one hand, you have policy changes maybe, but you also have reality on the ground, the need to protect assets, the need to make sure that troops are not diverted for missions other than training and testing. And DOD has been making the business case that you can save money over the long-term with renewable energy.

Inside EPA: [What were] some of the biggest challenges to come your way when you were there? Maybe they're still going on.

Jacobson: Some of them, I think, are still going on. . . . Well, I'll say this, the Navy, hard as it tries to comply with Marine Mammal Protection Act and so forth, and even when working very closely with NOAA, keeps getting sued. And resources are diverted to defending those lawsuits [almost every time the] Navy initiates a plan for a [sonar] testing or training program. And that is a challenge. It's constant. So that's a big challenge.

. . . I would [also] say it's a challenge for DOD that there hasn't been congressional authorization for another BRAC round [for] installations, and that of course, includes the disposition of property. And it's a challenge for DOD. There's excess capacity; they've presented excess capacity reports to Congress. And it would make some sense to put those properties to beneficial use in the communities, but it's a challenge that DOD faces.. . . [It] takes away a certain amount of planning when there's no authorization for base closure. That's a challenge.

I will say there is some challenge with . . . there are always going to be some, a little bit of struggle working with regulators [on the cleanup program], but I'd say that's a normal challenge. It's probably not anything extraordinary, but it's evident . . . And there's some challenge sometimes working with the other federal land management agencies, where there's perhaps some joint responsibility for long-term cleanup for former military bases. There's some challenges there. But those are not, I'd say, insurmountable and they're part of, sort of, the interagency process. And luckily there is [the White House Office of Management & Budget] to help sort it out when the agencies get stuck. But those are some challenges.

And funding is also always a challenge. You would think that, well, DOD has this gigantic budget and the annual cleanup and compliance budget is somewhere in the neighborhood of $3 to $4 billion every year. But there are a lot of sites and there's a lot of expensive remediation going on, and a lot of the other compliance activities and resource management activities are just simply expensive. So money is a challenge, believe it or not, even at DOD.

Inside EPA: The [president] has said he that he wants to eliminate the formula by which defense and non-defense discretionary spending were funded at parity. Would there be a problem for DOD if EPA's budget were to be cut?

Jacobson: Well, there are still states and there are still citizens, so I don't see really a direct link between EPA losing a lot of its resources and DOD's ability to back off on a lot of the ongoing work. I mean, most of the sites where DOD is spending a whole bunch of money are already the subject of federal facility agreements, so . . . I can't envision a situation where the regulator just doesn't have enough resources to watch what's going on, and then all of a sudden DOD is off the hook. That won't happen. . . . I don't see that. I mean, DOD has a certain level of responsibility and I don't think they're just going to stop doing what they're doing on a lot of these sites. Once a cleanup is underway, what you're paying for is close-out, a clean bill of health. And the state regulators will still be there.

Inside EPA: And would you expect any, or is it too hard to know, about any cuts at DOD under the Trump administration in terms of the environmental programs?

Jacobson: I have no idea if that'll happen. . . . With DOD, Congress is very involved, very intricately involved in the DOD budget process. And with the Defense Authorization bill every year, DOD is just a whole different creature in terms of how it's funded. . . . But as part of that process, the environmental budget is also based on some projected liability. So it's hard to make the case that that liability goes away. It doesn't go away . . .

Inside EPA: [How] familiar you are with open burn/open detonation [(OB/OD)]? . . . I loosely followed what was going on at Camp Minden, and then the push from citizens to get the military to move away from that, and adopt some new technology. And I understand that seems to be the move. But can you talk a little bit about that? Is the end in sight for that technology? . . . Do you expect DOD actually to move away from it, even if EPA doesn't . . . end this regulatory exclusion that allows for OB/OD. [Even] if EPA doesn't do that, is DOD likely to look to other technologies?

Jacobson: Well, DOD certainly does have some expertise and has been examining very carefully the technologies associated with the disposal of munitions. So Minden was a situation where one particular course of action was initially selected, and then met with community opposition as you said, and then a different approach was taken. So it's underway. Last I heard it was fine.

Inside EPA: You've been on both sides of enforcement -- Department of Justice and then you were [at the Interior Department (DOI)] and DOD. So any thoughts on lessons learned from being on both sides?

Jacobson: Well, I will say that I feel extremely privileged to have worked at three of what I think are some of the best agencies in the federal government. And it really did give me a different perspective in each experience. In some ways, DOJ [where I started] was the perfect baseline because you have to represent multiple agencies, so you kind of get a sense of how they each work. And then DOJ can sometimes, in a litigation context, serve as an arbiter when different agencies don't see eye to eye. So that was a really good place to come from . . . . But I also got to see the different relationships with the agencies and Congress, the different relationships with the agencies and the public. So these weren't big adjustments for me coming from DOJ, to DOI to DOD because I felt like I had a really good perspective on why this particular agency would have this position in the broader context. But . . . everybody is committed to mission, that is the bottom line. For DOD, the mission is national security ultimately. And the environmental issues, the natural resource issues, the energy issues are part of the broader mission of national security, but they're incidental to the mission of national security. So it is a somewhat different perspective, whereas at DOI, the mission is management of the nation's natural resources, and of course relationships with Indian tribes. . . .

Inside EPA: [In] some of the [cleanup] disputes I've covered -- EPA versus DOD -- . . . a lot of times . . . the decider is EPA. Do you see any kind of change in the dynamics there under the new administration that could happen where DOD has more say?

Jacobson: I don't know that the new administration will change that dynamic by letting DOD decide its own fate when disputes arise at EPA. I think one thing that should change, and we kind of tried a little bit to implement this, is if there's more regular back and forth communication, and . . . collaboration between EPA and DOD, problems can be addressed before they're elevated to the level of dispute resolution. For some reason, there were several communication breakdowns where maybe an EPA official in the region and a particular installation commander and his or her staff reached an impasse. The next thing you know it's at the regional administrator level, and the next thing you know it's at EPA headquarters. And in most of those instances, headquarters of the relevant military department, or certainly the Office of the Secretary of Defense, never even heard of this situation. So there was a disconnect in how matters got elevated. . . . And there wasn't always consistency in the level of. . . attempts to reconcile before matters reached that point. And I think ... it won't matter what administration it is. I think those agencies would be well served by a more defined process that's consistent across the board for resolving disputes before they're officially turned into dispute resolution. But I don't see that a change in administration is going change that dynamic. So much of it happens between career staff levels.

Inside EPA: [In] some cases, is it in the interagency agreements anyway?

Jacobson: That's right, it's in the interagency agreements. [What] I'm hearing you say is, 'Do we think that under . . . the Pruitt EPA administration, that the administrator will . . . cut DOD a break?' I don't think, no. Every agency at the end of the day wants to carefully guard its turf and its jurisdiction. It doesn't matter who the administration is. I think agencies want to be careful not to cede their jurisdiction.

Inside EPA: What's the long-term horizon for the DOD cleanup program? Is it going to be here in perpetuity? And regardless, or at least as far as our eyes can see, assuming it is, what are the program's needs going forward?

Jacobson: A lot of the more egregiously polluted sites are cleaned up and are in monitoring stages. So in some cases, there will be monitoring in perpetuity at some sites obviously, but that's no different than any major industrial site where even post-cleanup, there's monitoring in perpetuity. . . . I don't have exact numbers in front of me, but the cleanup program in terms of inventorying all the sites with ongoing remedies, it's about 80 percent complete or 90 percent complete, so I think there's a good story to tell on the success rate. So going forward, I see more compliance activity than cleanup activity. You're going to have spill response to be sure. You're still going to have incidents of pollution that happened in more of a spill context, or an accident context or something like that. But the legacy pollution is 80 to 90 percent cleaned up.

Now I think in particular with groundwater, that's I think where there's going to be some tension because there's going to be some groundwater cleanup technologies and standards that are, that might be one of the moving targets, if you will. But even there at some point you say 'well, this is as clean as it's going to get.' Then you're in a monitoring situation. But the legacy pollution is largely cleaned up. The focus will be on compliance.

Inside EPA: Was most of your time spent on cleanup issues? There's clean air, water, . . . we don't hear a lot about water issues, for instance.

Jacobson: No, really you don't, or air issues because those are governed by permits, and permits with high compliance records. You heard about Safe Drinking Water Act issues probably, but . . . DOD is a very compliant organization. There aren't going to be chronic permit violations. And DOD has a good working relationship with states. A lot of the permit regimes are delegated programs, obviously. DOD has good working relationships with state regulators by and large. The bigger issues -- the Longhorn's of the world [in reference to the lengthy dispute between EPA and the Army over the applicable perchlorate cleanup level for the Longhorn Army Ammunition Plant, TX], sonar litigation, the big energy procurement issues and so forth -- took up most of our time in the Office of the Secretary of Defense.

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